Thoughts of an activist lawyer

ISIS and International Humanitarian Law

The terrorist group Islamic State of Iraq and Syria (ISIS) presents complicated issues of classification under International Humanitarian Law (IHL).

IHL is the law specifically applicable in times of armed conflict. It seeks to insulate non-combatants such as civilians from all adverse consequences of armed conflicts. It does this by providing non-combatants protection—that is, they should not be targeted—and by limiting the means and methods of warfare. Specifically, it requires all fighters and combatants to distinguish between valid targets and those with protection, and limits targets as those whose destruction will contribute to the military objective: the complete subjugation of the enemy with minimal collateral damage.

Because IHL is a lex specialis, it cannot apply unless there is in fact an armed conflict, which is sufficiently intense and sustained over a period of time. If there is such a conflict, the type of conflict, be it international or internal, will then determine what the applicable law is. International armed conflicts, or those between states or a state and a group engaged in a war of national liberation, is governed by human rights law, the Geneva and Hague Conventions and by common article three. Internal armed conflicts, on the other hand, are conflicts between a state and an armed group that controls territory, has a military hierarchy, and ha shown itself capable of complying with IHL.

It is the issue of whether ISIS is engaged in an international or internal armed conflict that is controversial. Depending on what type of a conflict it is engaged in, fighters, in turn, would have right of combatants or simply be treated as detainees. This is because the status of a combatant, which among others, leads to the protected status of a prisoner of war, only exists in international armed conflicts. Likewise, immunity arising from one’s participation in an armed conflict exists only in international armed conflicts.

The source of the controversy is because while ISIS is not a state, although its insane members say it is, it nonetheless operates across national boundaries making the armed conflict apparently international. But the requirement of IHL is not that the conflict must cross boundary lines. It is that it be fought by states or by a state and a group engaged in a war of national liberation. ISIS, with its penchant for beheadings of innocent civilians, including journalists, cannot be said to be engaged in a war of national liberation against a colonial or racist regime.

On the other hand, ISIS, while more apt to be engaged in an internal armed conflict since it has territory and apparently a military command, has shown itself incapable of complying with the rules and customs of warfare. Again, its penchant for beheadings is proof of this. Moreover, the armed struggle is directed not just against a state; it is against at least two—Iraq and Syria. Strictly speaking, their barbaric acts appear to be directed against the entire civilized world.

Fortunately or not, the US involvement against ISIS in the form of targeted air strikes has resolved the problem of characterization. Under IHL, the use of air strikes will undoubtedly qualify the application of IHL. Moreover the fact that the US is now using its armed forces against the terrorist group has made the conflict an international armed conflict because regular armed forces of a state is now utilized in a foreign territory.

The issue today has thus gone beyond what conflict the ISIS can pose. Instead, we are now engaged in a debate on whether the air strikes are legal under international law. Ironically, the most unlikely leader has triggered the debate: the Pope himself.

Pope Francis has been vocal against the unilateral use of force even against the ISIS. This is surprising if only because the ISIS has openly declared war against all Christians. He has been arguing that instead of unilateral use of force the UN community, through the Security Council, should authorize the use of force against the terrorist group. I find myself sympathetic to the Pope’s cause. Imperfect as the UN Charter maybe, the type of limited peace that we have achieved since World War II has been anchored on our adherence to the prohibition on the use of force. If we deviate from this established norm, we open ourselves to the possibility of resort to further unilateral force, which will shatter our temporary peace.

In any case, jus in bello is distinct from jus ad bellum. Regardless of the legality of the use of force, IHL, because it is applicable, will apply. This means that individuals behind ISIS, regardless of where they may be found, will be prosecuted for war crimes. Let this be fair warning to the loonies who are toying with the idea of supporting this terrorist group.